Citation Nr: 0637503
Decision Date: 12/04/06 Archive Date: 12/12/06
DOCKET NO. 04-40 029 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to a total rating based on individual
unemployability (TDIU) due to service-connected disabilities.
ATTORNEY FOR THE BOARD
C. Eckart, Counsel
INTRODUCTION
The veteran served on active duty from June 1974 to April
1976.
This case comes before the Board of Veterans' Appeals (Board)
from a rating decision of July 2004 from the Regional Office
(RO) of the Department of Veterans Affairs (VA), which in
part, denied entitlement to TDIU benefits.
The veteran is noted to have filed a claim for entitlement to
an increased rating for his service-connected right ankle
arthritis in a March 2006 document. This is referred to the
RO for further adjudication. The veteran is noted to have
submitted evidence along with this claim, which was received
after the last supplemental statement of the case (SSOC)
without a waiver of RO review. However a review of this
evidence reveals it to be duplicates of records that have
been previously reviewed by the RO. Thus it is not necessary
to send this matter back to the RO for review of this
duplicate evidence. See 38 C.F.R. § 20.1304(c) (2006).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran seeks a total disability rating based on
individual unemployability (TDIU). A total disability rating
for compensation purposes may be assigned on the basis of
individual unemployability when the disabled person is, in
the judgment of the rating agency, unable to secure or follow
a substantially gainful occupation as a result of service-
connected disabilities. 38 C.F.R. § 4.16(a) (2006). In such
an instance, if there is only one such disability, it must be
rated at 60 percent or more; if there are two or more
disabilities, at least one disability must be rated at 40
percent or more, and sufficient additional disability must
bring the combined rating to 70 percent or more. Id. If the
applicable percentage standards set forth in 38 C.F.R. §
4.16(a) are not met, an extra-schedular rating is for
consideration where the veteran is otherwise unemployable due
to service-connected disability. See 38 C.F.R. § 4.16(b)
(2006).
The veteran is currently service-connected for arthritis of
the right ankle and hyperthyroidism, rated as noncompensable
and diabetes mellitus with diabetic retinopathy both eyes
with mild cortical cataract, rated 60 percent disabling. His
combined evaluation is 60 percent.
In the present case, in March 2006, the veteran submitted a
statement alleging that his arthritis is getting worse in
various joints, including his service connected right ankle.
This is a claim for entitlement to an increased rating for
the service-connected right ankle. Although the Board has no
jurisdiction over that claim, the Board may not address the
TDIU issue in the interim. In Harris v. Derwinski, 1 Vet.
App. 180 (1991), and Hoyer v. Derwinski, 1 Vet. App. 208
(1991), the United States Court of Appeals for Veterans
Claims (Court) held that that an appealed claim was
"inextricably intertwined" with another claim which was
undecided and pending before VA. Thus, the RO must address
any pending service connection claim prior to adjudication of
the TDIU claim.
The Board also notes that the most recent examinations of the
veteran's service-connected disabilities which also addressed
the effects of his service-connected disabilities on his
unemployability were conducted in March 2004, prior to this
new claim. In view of the time that has passed and in view
of the veteran's alleging a worsening of his service-
connected arthritis, the Board finds that reexamination is
indicated to assess the current affect of his service-
connected disabilities on his employability. The veteran is
noted to be in receipt of Social Security benefits and was
retired from employment with the Federal Government due to a
nonservice-connected knee disability and the examination must
separate the impact of the service-connected disabilities
from the nonservice-connected disability on his ability to
work.
VA's duty to assist the veteran includes obtaining recent
medical records and a thorough and contemporaneous
examination in order to determine the nature and extent of
the veteran's service-connected disabilities. 38 C.F.R. §
3.159(c)(4) (2006).
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED for the following:
1. The AMC should request the veteran to
provide current information about his
medical treatment for his service-
connected right ankle disorder, diabetes
mellitus with retinopathy both eyes with
mild cortical cataract, and
hyperthyroidism and after obtaining
necessary authorization, attempt to
obtain the records of all medical
treatment for the disabilities since the
issuance of most recent supplemental
statement of the case in March 2006. If
no records are available, that fact
should be clearly noted in the claims
files and the AMC should advise the
veteran.
2. Following completion of above, the
veteran should be afforded a VA general
medical examination, by appropriate
specialist(s) to determine whether his
service-connected disabilities prevent
him from working. It is imperative that
the examiner(s) review the pertinent
medical evidence in the claims file and a
copy of this REMAND. All indicated
diagnostic studies should be performed.
The examiner(s) is requested to offer an
opinion as to whether it is at least as
likely as not (50 percent or greater
probability) that the veteran's service-
connected right ankle disorder, diabetes
mellitus with retinopathy (and other
diabetic residuals noted) and
hyperthyroidism preclude his ability to
maintain substantially gainful
employment, without regard to his age or
any nonservice-connected disorders.
3. Following completion of the above
development, the AMC should review the
additional evidence and any pending
increased rating claim and then re-
adjudicate the TDIU claim. If the
desired benefits are not granted, an SSOC
should be furnished to the veteran. He
should be afforded an opportunity to
respond to the SSOC before the claims
folder is returned to the Board.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified; however, the veteran is advised that
failure to cooperate by reporting for examination may result
in the denial of his claim. 38 C.F.R. § 3.655 (2006).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).